LAW OF THE SEA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80R01362A000200110001-5
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 17
• Document Creation Date: December 12, 2016
• Document Release Date: April 15, 2002
• Sequence Number: 1
• Publication Date: March 15, 1977
• Content Type: MF

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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
15 March 1977
MEMORANDUM FOR: Jessica Tuchman
National Security Council Staff
SUBJECT : Law of the Sea
1. The attached working paper on the issues still
outstanding in the Law of the Sea negotiations may be of
interest to you. It is intended not for the experts and
the lawyers on the U.S. negotiating team -- it will not
educate them in the slightest: it is rather for the
generalists in various parts of the government who need
a fairly brief guide to a complex subject.
2. If you have any comments or questions on this
Deputy Director
Geographic and Cartographic Research
Attachment:
a/s
cc:
Acting Director, CPS
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Confidential
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Outstanding Issues in the
Law of the Sea Negotiations
Working Paper
Confidential
GC 77-10037
March 1977
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Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . 1
Deep Seabeds . . . . . . . . . . . . . . . . . . . . . . . . 1
Status of the Economic Zone . . . . . . . . . . . . . . . . 5
Special Rights for Disadvantaged States . . . . . . . . . . 6
Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . 6
Continental Margin . . . . . . . . . . . . . . . . . . . . . 7
Delimitation Between Opposite and Adjacent States . . . . . 8
Dispute Settlement . . . . . . . . . . . . . . . . . . . . . 9
Marine Scientific Research . . . . . . . . . . . . . . . . . 10
Marine Pollution . . . . . . . . . . . . . . . . . . . . . 10
Straits . . . . . . . . . . . . . . . . . . . . . . . . . 10
Outlook . . . . . . . . . . . . . . . . . . . . . . . . . 11
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CON FIBENTIAI
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OUTSTANDING ISSUES IN THE LAW
OF THE SE N GOTIATIONS
Introduction
When the Law of the Sea Conference resumes in New York on
23 May for its sixth session since its inception in 1973, a
concerted effort is planned to try to resolve the critical
issue of deep seabed mining -- a divisive question that is
jeopardizing chances for broad international agreement on a
comprehensive oceans treaty. The impasse between the developed
and the developing countries over this matter came so close to
wrecking the conference at the previous session, last August and
September, that the delegates agreed to concentrate on this
issue during the first few weeks of the upcoming session. In a
further effort to facilitate a settlement of the seabed issue,
an informal mini-conference of many LOS participating countries
was held in Geneva in February-March of this year. It was
chaired by Jens Evensen, head of the Norwegian LOS delegation,
who has been helpful in bridging opposing viewpoints on other
controversial issues.
Also of consequence to the 150 or so participating nations
are a number of other outstanding issues. Several key aspects
of the projected 200-mile Economic Zone remain contentious, and
the provisions for dispute settlement in the LOS are still under
discussion.
Deep Seabeds
The establishment of an international legal regime for
deep seabed mining beyond the limits of national jurisdiction
remains the most contentious of the various outstanding LOS
issues. The last New York session adjourned without agreement
on this question, and in consequence, the final composition
of the proposed International Seabed Authority (ISA) and the
extent of its powers to control the exploitation of seabed
resources are yet to be determined.
NOTE -- This working paper was prepared by the Office of Geographic
and Cartographic Research of the Central Intelligence Agency. Although
the subject matter was discussed with representatives of other offices
and agencies, no formal attempt at coordination has been taken. The
views presented represent the best judgments of the issuing office,
which is aware that the complex and controversial issues discussed
lend themselves to nth., i.,+,..,.....-- -
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It is increasingly apparent that negotiations on ocean
mining have been overtaken by the North-South controversy
over a "new international economic order." Industrialized
states are anxious to proceed with the mining of manganese
nodules, rich in cobalt, copper, manganese, and nickel. These
nodules, found at depths of 2-3 miles, offer the US, Europe,
and Japan a potentially significant alternate source of industrial
ores that could lessen their dependence on the land-based
deposits of Third World nations.
Some of the lesser-developed countries (LDCs) may now
consider seabed mining a pawn in the dialogue over inter-
national economics rather than a purely oceans issue.
Viewing the nodules as the "common heritage of mankind"
they consider the struggle for their control to be a test of
LDC capacity to demand the equitable solution of international
economic problems. The possibility of an international
development fund or direct grants to developing countries,
created out of revenues paid to the ISA by seabed miners,
may actually be secondary to their interest in meaningful
participation in the decision-making processes of a viable
ISA.
The Group of 77, the LDC caucus, succeeded in stalemating
talks on the seabed issue at last year's summer session in
New York by insisting on reopening issues thought to have been
settled at the spring meeting. A vocal minority of this group
was strongly dissatisfied not only with the substance of the
revised negotiating text, but also with the forum in which it
was produced -- a select group comprised of industrialized states
and the moderate Brazil/Peru/Chile bloc of LDCs.
The negotiating text proposes the establishment of a "dual
access" or "parallel system" that would require a mining
company to apply to the Seabed Authority for the right to mine
two tracts. The Authority would reserve one of the requested
tracts for exploitation by its mining subsidiary -- the
Enterprise -- or by LDCs and would license the company to mine
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the other. Significantly, the Authority would be required to
grant exploitation contracts to bona fide applicants unless they
failed to meet specific and exhaustive criteria contained
in the treaty.
Striking at the heart of the negotiating text's proposal
on guaranteed access, the Group of 77 tabled a draft proposal
that would give the ISA discretionary authority to determine
whether or not states and private firms could exploit the
international area, while placing no restrictions on the
measures that could be taken to favor LDCs and the Enterprise.
Throughout the last New York session the Group of 77
emphasized the necessity of absolute control by the ISA over
access to the mine sites and the conditions of exploitation;
in contrast the industrialized nations stressed the need for
guaranteed access by states and their nationals. The Group
of 77 argued that the rights of the Enterprise must be primary
and are not to be equated with those of states and private
entities which do not adequately represent the interests of
mankind as a whole.
Former Secretary Kissinger tried to break the deadlock
with an offer of US financial and technical support of the
Enterprise. He also suggested that a review conference could
be held in about 25 years to evaluate the seabed mining regime.
His intervention, while welcomed by many delegates, came too
late in the session to alter the trend of events.
Since the Group of 77 operates by consensus and speaks
publicly with one voice, its proposal on the system of access
had to be sufficiently extreme to accommodate the strong views
of aggressive members such as Algeria and Tanzania. There
are indications, however, that a less strident majority of
the group privately held it unnecessary for the ISA to have
absolute control over the access system; apparently they
believed that a modified parallel access system, with precise
checks and balances to prevent arbitrary actions by the ISA and
abuses by mining firms, would be a more pragmatic arrangement.
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The major outstanding issue within the Group of 5 (US, UK,
USSR, France, and Japan) is the question of national quotas
for seabed mine sites. The Soviet Union, departing from a
previous position in which it held that no single state should
obtain rights to more mine sites than any other state, now
leans toward the French quota proposal. By this formula Paris
seeks to establish a 20% limit on the seabed area allocated
to any state or its nationals within designated 500,000 square
kilometer blocks as well as to limit the output of any one
state to 35% of total seabed production. The Soviets state
that they support a quota concept in order to prevent a fore-
closure of future resource options that could result from
unfettered exploitation by US and multinational corporations.
Moscow also acknowledges that it wants to prevent the geo-
political domination of the deep seabeds by Western states.
The Group of 5 is also in cisagreement over the Enterprise
and over the judicial procedures of the proposed Seabed
Tribunal. France and Japan attach the same importance to
guaranteed access as do the US, UK, and the Soviet Union,
but they do not support the proposed Enterprise. Furthermore,
Moscow, noting its historic opposition to international tribunals,
has indicated willingness to accept a deep seabed tribunal only
if arbitration is permitted as an alternate means of dispute
settlement.
Canada, concerned about the potential disruptive effects
of large-scale seabed mining on its domestic nickel industry,
is pressing for treaty limitations on seabed production in
addition to the tentative compromise on Article 9 of the
negotiating text, which protects land-based LDC copper
producers for 20 years. Fearing the possibility of American
subsidization of uneconomic production, Ottawa proposes that
land-based and seabeds producers share the future growth of
the nickel industry.
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Still to be resolved is the controversy over the voting
mechanism and the distribution of power between the Authority's
two principal organs -- the Assembly and Council -- which was
postponed as both the Group of 77 and major industrial states
agreed not to raise these unresolved issues at the second
New York session.
Status of the Economic Zone
Among the major outstanding issues is the juridical status
of the projected 200-mile Economic Zone. Is it to retain a
traditional high seas status or is it to have some other unique
designation? The US and other maritime nations consider it
essential to regard the Economic Zone as high seas except for
stipulations specified in an LOS treaty. Viewing free movement
in this area as crucial to world trade and security, they
believe it necessary to protect this right by treaty. Otherwise,
they contend, the stage could be set for possible conversion of
the zone, in effect, into a 200-mile territorial sea, within
which challenges to navigation and overflight could arise.
There is strong opposition, however, to designation of
the Economic Zone as high seas; in fact, the present draft
text specifically states that it is not. Support for this
stand stems largely from the desire of many developing coastal
states for legal protection against potential infringements of
their rights by the powerful maritime nations. While no country
argues for the exclusion of such high sea rights as navigation,
overflight, and communication, a few territorial extremists
want the Economic Zone under recognized national jurisdiction,
thereby subordinating such traditional freedoms to coastal
state interpretation.
More moderate coastal states have been seeking a compromise
that would accommodate both international and coastal state
rights and duties in the Economic Zone. In this connection,
various approaches have been proposed that either avoid charac-
terization of the nature of the Economic Zone altogether, or
else designate it sui generis, i.e., neither territorial waters
nor high seas, but having a unique status. Together with
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careful wording detailing international and coastal state
rights in the Economic Zone, an effective dispute settlement
procedure concerning freedom of navigation and other traditional
high sea rights would be helpful in reaching a suitable compromise
on this important issue.
Special Rights for Disadvantage d States
Another outstanding issue involving the Economic Zone
concerns certain special rights sought by landlocked and
"geographically disadvantaged" states. This disparate group,
led by Austria and numbering some 50 countries, basically
seeks three objectives: (1) access to the sea and transit
rights; (2) a share of revenues derived from any exploitation
of the continental margin beyond 200 nautical miles; and
(3) access and preferential rights to living resources in
the economic zones of neighboring states. In the LOS discussions
to date some progress has been made in the achievement of
objectives (1) and (2); objective (3), however, remains highly
controversial,
Complicating final settlement of these issues is the lack
of an agreed definition of a "geographically disadvantaged"
state. Hence coastal powers have been understandably reluctant
to grant special privileges in waters under their control. As
a matter of fact they reacted negatively to the strong pressures
exerted by the proponents of special rights at the last New York
session.
Fisheries
Coastal states are now writing de facto international
fishing law, as one by one, and in groups, they take unilateral
measures to extend their fishing zones. Nearly 40 countries
have already claimed 200-mile maritime zones, and others
have declared jurisdiction over zones ranging in breadth
from 100 to 200 miles. Australia, New Zealand, and South Africa
are reportedly close to making 200-mile declarations and other
coastal states are considering the matter.
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The new fishing laws are in general accord with articles
in the negotiating text providing for coastal state jurisdiction
over living resources in the Economic Zone. They generally
include stipulations establishing the right of the coastal state
to manage the fish stocks and to determine the total allowable
catch; to harvest that part of the total allowable catch of
which it is capable; and to determine the allocation to other
states of the unused portion of the allowable catch under set
quotas. Several of the states that have taken such unilateral
action have indicated willingness to amend their fishing laws
to conform to an LOS treaty when and if one comes into existence.
Still unresolved is the regulation of fishing for highly migratory
species, such as tuna. The negotiating text on this matter is
vague. It calls for some sort of cooperative management on the
part of the fishing and the coastal states, but implying a
degree of coastal state priority.
Continental Margin
There has been a narrowing of differences between the two
principal groups concerned with mineral exploitation on the
continental shelf beyond 200 nautical miles, but many important
questions are still to be resolved. Initially, landlocked and
narrow shelf states sought to limit coastal state mineral rights
on the shelf to the 200-mile Economic Zone, with any resources
beyond that distance to be shared as a part of the "common
heritage of mankind." At the same time wide margin states
(e.g., Canada, Australia, New Zealand) insisted on complete
sovereignty over the mineral resources of the entire continental
shelf, unrestricted by distance criterion. A consensus calling
for the sharing of revenues derived from the exploitation of
mineral resources beyond 200 miles, coupled with a precise
definition of the outer edge of the continental margin, has
since emerged.
There is strong Third World support for revenue sharing
based on gross revenue figures, with the revenue to be paid
by wide margin developed states to developing countries, using
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the proposed International Seabed Authority as the dispersing
agency. The developed states generally oppose such use of the
Authority, preferring instead to work through existing organi-
zations for international development or other regional bodies
for this purpose. They also oppose the adoption of a double
standard, whereby developing broad margin states would be exempt
from revenue sharing payments.
At the last New York session a segment of the Arab Group
took a stand against coastal state mineral rights beyond a
200-mile limit, arguing that any exploitation in that area should
come under the domain of the International Seabed Authority. The
objective, at least in part, may have been multilateral control
over possible hydrocarbon deposits on the continental shelves
beyond 200 miles. As all of the Arab States did not support this
approach, however, it appears that a compromise settlement,
involving revenue sharing and precise delimitation of the
continental shelf, will prevail. The satisfactory resolution
of the broad continental margin issue, with all the intricacies
and interests involved, is important in clearing the way
to the conclusion of an overall LOS treaty.
Delimitation between Opposite and Adjacent States
The projected extension of the territorial sea to 12 miles
and the establishment of the 200-mile Economic Zone will further
complicate delimitation of sea boundaries between opposite and
adjacent states. Disputes already have arisen, for example,
between Greece and Turkey, Libya and Tunisia, Venezuela and
Colombia, and Ireland and the UK.
In the LOS discussions, debate on the primary method to be
used in such delimitation essentially has been between those
advocating use of a median or equidistant line and those
favoring equity or special circumstances. The negotiating
text as it now stands provides for agreement on the principle
of equity, taking into account, where appropriate, the median or
equidistant line. Efforts at the last LOS session to amend
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the text proved unavailing, and it seems unlikely that there
will be much shift, if any, away from text provisions as they
now stand.
Dispute__Settlement
Substantial progress has been made on the creation of a
comprehensive system for the obligatory settlement of disputes
relating to the interpretation and application of the projected
LOS treaty. Despite broad support for this concept, however,
some major problems remain. These mainly revolve around the
choice of procedures for dispute settlement and the extent to
which they will apply in the Economic Zone. Complicating
agreement is the fact that resolution of the principal dispute
settlement differences is dependent on major decisions yet
to be made on such matters as deep seabed mining, the legal
status of the Economic Zone, and the regime for marine
scientific research.
Most coastal states are prepared to accept the application
of a compulsory dispute settlement system in the Economic Zone
to such matters as navigation and pollution, but not to fishing.
The USSR, for its part, has conditioned its acceptance on the
inclusion of special procedures and on the clear exclusion of
maritime boundary disputes. Concerning the legal instruments
to be used in settling disputes, the International Court of
Justice, arbitration, special procedures, or the proposed
LOS Tribunal, the range of preference is broad.
There is controversy over the question of whether there
should be a separate tribunal as part of the International
Seabed Authority, and if so, over the extent of its powers.
Another question concerns the possible extension of dispute
settlement procedures to states or bodies not party to the LOS
Convention. In this regard various countries have spoken in
the interest of national liberation movements recognized by
the Arab League or the Organization of African Unity.
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Marine Scientific Research
At the forthcoming LOS session much attention will be
focused on the resolution of issues bearing on research in the
Economic Zone and on the continental shelf. At stake is the
character of the system within which researchers will carry
out their programmed activities in these waters. The developing
nations clearly favor the inherent restrictions emcompassed by
coastal-state consent requirements as set forth in the present
negotiating text, and in this they are supported by the USSR,
the Socialist bloc generally, and by a growing number of
developed states. In opposition is the United States which
continues to hold for a "notification" regime. Under this
concept all fundamental research would be authorized, subject
only to specific, stipulated limitations and procedures;
resource-related research would require the consent of the
coastal state.
Marine Pollution
The remaining key issue in LOS pollution discussions
concerns the right of coastal states to prescribe vessel design,
construction, equipment, and manning standards in the territorial
sea. In claiming this right, which is reflective of domestic
legislation, the United States stands virtually alone, opposed
by all of the other maritime powers. Many developing countries
also are opposed because they are anxious to develop their
own merchant fleets as rapidly and economically as possible.
Straits
The present negotiating text strikes a good balance between
the safety and pollution interests of straits states and the
international community. Reflecting a long history of prior
negotiation on the subject, the appropriate articles represent
a broad consensus, with only a few countries (such as Morocco,
Yemen, and Oman) still wishing to impose restrictions on straits
passage. Nevertheless the introduction of certain amendment
proposals by Malaysia at the last New York session could
reopen the issue. Designed to strengthen Malaysia's control
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over navigation and overflight and to further protect its
interests against vessel-source pollution, they attracted
considerable support.
The maritime nations are prepared to consider cosmetic
changes in the straits articles, but they do not want a general
reopening of the issue. Also, since Malaysia's concerns center
on Japanese supertanker transit of the Malacca Strait, it is
hoped that a solution can be achieved through bilateral talks
outside the context of the LOS Conference. Considerable progress
has been made on this problem during the present intersessional
period. Malaysia, Indonesia, and Singapore have reached agree-
ment among themselves on a Traffic Separation Scheme (TSS)
and on Under-Keel Clearance (UKC) provisions for the Malacca
Strait, and extensive negotiations are now underway with Japan.
Outlook
The conference has reached the point where political decisions
on all outstanding issues are required. How these issues are
addressed at this session will indicate whether and when a broadly
based LOS treaty is feasible. As the President of the LOS
Conference, Mr. Amerasinghe, said at the close of the previous
session last September, experience in this international
endeavor had taught him to be neither optimistic nor pessimistic.
He only expressed the hope that when the Conference resumed
"in another 8-9 months," the gestation period would have produced
something. To that end wide-ranging intersessional discussions
have been held, hopefully to pave the way toward agreement in
major problem areas when the LOS Conference resumes this May.
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